Blakely Update for District Court Judges

October 2005

John Rubin

© 2005

© 2005

The Road to Allen and the Revised Structured Sentencing Laws

• Jones v. United States (USSC 1999)• Federal carjacking statute imposed higher penalties if

offense resulted in serious bodily injury or death • Footnote suggested that under Due Process Clause of

Fifth Amendment and notice and jury trial guarantees of Sixth Amendment, any fact (other than prior conviction) that increases maximum penalty for crime must be charged in indictment, submitted to jury, and proven beyond reasonable doubt.

© 2005

Apprendi Applies Jones as Constitutional Requirement

• Apprendi v. New Jersey (USSC 2000)• State hate crime statute authorized higher

maximum sentence if defendant committed offense based on victim’s characteristics

• Any fact (other than a prior conviction) that increases the punishment for a crime beyond the statutory maximum must be submitted to jury and proven beyond a reasonable doubt– Court declines to decide indictment issue

© 2005

NC Recognizes Apprendi for Enhancements

• State v. Lucas (NCSC 2001)• NC statute imposed extra 60 months for A through E

felony if defendant possessed firearm• Maximum sentence for structured sentencing

purposes is theoretical maximum, which for felony sentencing is top of aggravated range in prior record level VI– Based on theoretical defendant, imposition of firearm

enhancement always exceeds theoretical maximum– But, aggravators and prior record points would never

increase sentence beyond theoretical maximum

© 2005

More Lucas

• Facts supporting enhancement must be alleged in indictment (as matter of state law), submitted to jury, and proven beyond reasonable doubt

• Statute then in effect did not contemplate this procedure, but state could seek enhancement if it complied with requirements identified by court

• In 2003, legislature codified Lucas requirements in firearm enhancement statute (and other enhancement statutes)

© 2005

Scalia Drops the Other Boot

• Blakely v. Washington (USSC 2004)

• Based on assorted sentencing factors, state statute authorized higher sentence than standard range

• Statutory maximum for Apprendi purposes is maximum sentence judge may impose based solely on facts reflected in jury verdict or admitted by defendant

© 2005

Our Supreme Court Responds

• State v. Allen (NCSC July 1, 2005)• Statutory maximum under Blakely is top of

presumptive range within each prior record level– Overruling that portion of Lucas

• Any fact (other than prior conviction) that increases punishment beyond statutory maximum must be admitted by defendant or decided by jury beyond reasonable doubt– Court overrules portion of Lucas requiring factors to be

alleged in indictment– But, court’s ruling does not affect statutory pleading

requirements enacted by legislature

© 2005

More of Allen

• Structured sentencing provisions that allow aggravated sentence based on judge’s findings by preponderance of evidence unconstitutional

• Imposition of aggravated sentence in violation of these requirements is structural error, requiring resentencing in every case

© 2005

Speight Speaks . . . quietly

• State v. Speight (NCSC July 1, 2005)• Allen applies to DWI cases tried in superior court

– Non-conviction GAFs and AFs must be submitted to jury and found beyond reasonable doubt (although need not be alleged in indictment). Accord Cruz, NCCA, 10/18/2005

• Speight suggests, but does not hold, that Allen applies only to cases in which defendant has jury trial right– Thus, Blakely requirements might not apply to non-

conviction GAFs and AFs in DWI cases in district court

© 2005

The Legislature Speaks . . .on Structured Sentencing Only

• Legislature revises SS statutes for offenses committed on or after June 30, 2005– Allen therefore applies to offenses committed

before June 30, 2005

• DWI bill must await next session

© 2005

“Blakely” Bill

• Unless admitted by defendant, jury must find following beyond reasonable doubt– All aggravators

• But not that defendant has been adjudicated delinquent for A through E felony

– Prior record point of being on probation, parole, etc., at time of offense

• But not prior convictions and not prior record point for all elements of present offense being included in prior offense

© 2005

Felony Plea Requirements

• Determine whether state is seeking aggravated sentence and prior record point that defendant was on probation, parole, etc.

• Determine whether state has complied with notice requirements or defendant has waived notice– State must give written notice, at least 30 days before trial

or guilty plea, of statutory aggravators and prior record point that defendant on probation, parole, etc.

• State must get indictment or information for nonstatutory aggravators

© 2005

Felony Pleas

• If defendant admits to aggravators or prior record point, sentencing judge must– comply with 15A-1022– advise defendant of right to jury trial and right to

prove mitigators at sentencing hearing– determine that there is factual basis for admission

and that admission is result of informed choice of defendant

– determine mitigators and balance

© 2005

The Court of Appeals Does Its Best

• Aggravators– Lots of cases vacate aggravated sentence based on judge’s

finding of aggravators.• But NCSC has stayed some of decisions

• USSC granted cert. on 10/17 in State v. Recuenco, 110 P.3d 188 (Wash. 2005), to determine whether Blakely error can be harmless

– Aggravator that defendant was adjudicated delinquent for A through E felony must go to jury (Yarrell)

• Decision inconsistent with new statute

• NCSC issues temporary stay

© 2005

More Court of Appeals Decisions

• Prior record points– Prior record point that defendant was on probation, parole,

etc., must go to jury (Yarrell; Wissink; Shine, 10/18/2005)• Decisions consistent with new statute

• NCSC issues temporary stay

– Prior record point that all elements of present offense included in prior offense does not have to go to jury (Poore)

• Decision consistent with new statute

• No stay issued

© 2005

Improper Findings of Aggravators

• Stipulations to aggravators– Stipulation may not be sufficient basis on which to aggravate sentence

because not knowing and intelligent waiver of jury trial right (Everette; Wissink; Meynardie; Whitehead, 10/18/2005)

– Decisions consistent with procedure in new statute– NCSC issues temporary stay– But see Dierdorf, 10/18/2005 (stipulation to be sentenced in aggravated

range was sufficient for aggravator)

• Presumptive range– If aggravator found by judge, even presumptive sentence improper

(Norris)– Consistent or inconsistent with new statute???– NCSC issues temporary stay

© 2005

Sentencing for Misdemeanors Subject to SS

• For offenses before or after June 30, 2005, Blakely does not affect how you do structured sentencing for misdemeanors– Allen states that it does not apply to prior convictions

– Blakely bill does not apply to misdemeanors

• But, beware statutes governing particular offenses, which may make enhancement an element of offense– For example, repeat shoplifting

© 2005

Sentencing for Impaired Driving

• Statutory GAFs and AFs need not be pled for you to consider them– Not required by Allen, which Speight followed,

whether or not Blakely applies to district court– Blakely bill does not apply to DWIs

• But, if Blakely does apply to misdemeanors in district court– state may, as constitutional matter, need to give at

least some notice of non-statutory AFs

© 2005

More Impaired Driving

• If Blakely applies in district court, you may use non-conviction GAFs and AFs only if you find the factors beyond reasonable doubt or defendant admits them– You may need admissible evidence of factors

• If Blakely applies,– Level III is subject to above

– Level IV is subject to above unless there are no AFs and no mitigators

– Level V may be subject to above if there is AF

© 2005

Felony Pleas for Offenses Committed after June 30

• Use aggravator only if defendant admits aggravator– Do this even for aggravator that defendant adjudicated delinquent of A

through E felony until appellate courts say otherwise– Do this even when sentencing in presumptive range until appellate

courts say otherwise• You may count prior record point that defendant was on

probation, parole, etc., only if defendant admits point• You may do above without state having given written notice if

defendant waives notice• Take admissions with essentially same formality as guilty plea• No admission required for prior convictions or prior record

point that elements of present offense included in prior offense• Determine mitigators and balance

© 2005

Felony Pleas for Offenses Committed before June 30

• Use aggravator only if defendant admits aggravator– Do this even for aggravator that defendant adjudicated delinquent of A through

E felony until appellate courts say otherwise– Do this even when sentencing in presumptive range until appellate courts say

otherwise• You may count prior record point that defendant was on probation, parole,

etc., only if defendant admits point• You probably may do above without state having given written notice

– But you may need notice or waiver of notice for nonstatutory aggravator • Take admissions with essentially same formality as guilty plea until

appellate courts say otherwise• No admission required for prior convictions or prior record point that all

elements of present offense included in prior offense• Determine mitigators and balance